Hawkins v. Ghiz et al

Filing 52

MEMORANDUM DECISION modifying and adopting Report and Recommendations re 43 Report and Recommendations.; denying 48 Motion to Withdraw ; denying 29 Motion for Leave to File Second Amended Complaint; re 43 REPORT AND RECO MMENDATIONS. IT IS HEREBY ORDERED that the Report and Recommendation 43 is ADOPTED AS MODIFIED. Plaintiff's federal claims in this action are DISMISSED WITHOUT PREJUDICE, Plaintiff's state law claims in this action are DISMISSED WITHOUT PREJUDICE, and Plaintiff's motion for leave to file a second amended complaint dated October 29, 2019 IS DENIED. See Order for further details. Signed by Judge David Barlow on 11/9/20. (jrj)

Case 2:18-cv-00466-DBB-JCB Document 52 Filed 11/19/20 PageID.323 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
ANTHONY BRIAN HAWKINS,
Plaintiff,
v.
ADAM F. GHIZ, et al.,
Defendant.

MEMORANDUM DECISION AND
ORDER:
• MODIFYING AND ADOPTING
[43] REPORT AND
RECOMMENDATION; and
• DENYING [48] MOTION TO
WITHDRAW NO. [29] MOTION
FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT
Case No. 2:18-cv-00466-DBB-JCB
District Judge David Barlow
Magistrate Judge Jared C. Bennett.

The Report and Recommendation 1 issued by United States Magistrate Judge Jared C.
Bennett on August 21, 2020 recommends that Plaintiff’s federal claims in this action be
dismissed with prejudice, state law claims in this action be dismissed without prejudice, and that
Plaintiff’s October 29, 2019 motion for leave to file a second amended complaint be denied. 2
The parties were notified of their right to file objections to the Report and
Recommendation within 14 days of its service pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P.
72. 3 Plaintiff requested an extension of time until October 10, 2020 to file any objection. 4 That
request was granted. 5

1

Report and Recommendation, ECF No. 43, filed August 21, 2020.

2

Id. at 19.

3

Id.

4

Motion for Extension of Time, ECF No. 45, filed September 8, 2020.

5

Order Granting Motion for Extension of Time, ECF No. 46, filed September 10, 2020.

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However, before the end of the objection period Plaintiff filed a motion to withdraw his
motion for leave to file a second amendment complaint (Motion to Withdraw) 6 and then filed a
new motion for leave to file a second amendment complaint. 7 Plaintiff then filed an untimely
objection after the expiration of the time he requested. 8
Because no party filed a timely written objection to the Report and Recommendation by
the specified deadline requested by the Plaintiff, and because the analysis and conclusions of the
Magistrate Judge are sound, the Report and Recommendation of Magistrate Judge Bennett is
adopted with the following modifications: because Magistrate Judge Bennett did not have that
motion for leave to file before him, the court does not adopt the futility analysis contained in the
August 21, 2020 Report and Recommendation and is dismissing Plaintiff’s federal claims
without prejudice, rather than with prejudice. The court requests that Magistrate Judge Bennett
review Plaintiff’s newly filed motion for leave to file second amended complaint 9 and, in
accordance with 28 U.S.C. §636 (b)(1)(B), issue a report and recommendation on whether that
motion should be granted or denied.
Plaintiff’s Motion to Withdraw will not be considered and will be denied. The Magistrate
Judge issued a Report and Recommendation for consideration by this court that focused
specifically on the motion to amend that Plaintiff seeks to withdraw. Federal statute and rule
specify that Plaintiff’s permitted course of action is to timely object to that Report and
Recommendation, 10 not seek to avoid the operation of that Report and Recommendation or

6

Motion to Withdraw Motion for Leave to File Second Amended Complaint, ECF No. 48, filed September 25,
2020.

7

Motion for Leave to File Second Amended Complaint, ECF No. 49, filed September 25, 2020.

8

Objection to Report and Recommendation, ECF No. 50, filed October 14, 2020.

9

Motion for Leave to File Second Amended Complaint, ECF No. 49, filed September 25, 2020.

10

See 28 U.S.C. § 636 and Fed. R. Civ. P. 72

2

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subsequent court order by seeking to withdraw the motion that was the subject of the Magistrate
Judge’s Report and Recommendation.
ORDER
IT IS HEREBY ORDERED that the Report and Recommendation 11 is ADOPTED AS
MODIFIED. Plaintiff’s federal claims in this action are DISMISSED WITHOUT PREJUDICE,
Plaintiff’s state law claims in this action are DISMISSED WITHOUT PREJUDICE, and
Plaintiff’s motion for leave to file a second amended complaint dated October 29, 2019 IS
DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion to withdraw his motion for leave to
file a second amendment complaint 12 is also DENIED.
Signed November 19, 2020.
BY THE COURT

________________________________________
David Barlow
United States District Judge

11

Report and Recommendation, ECF No. 43, filed August 21, 2020.

12

Motion to Withdraw Motion for Leave to File Second Amended Complaint, ECF No. 48, filed September 25,
2020.

3